SKETCH OF 

CHARLES PINCKNEY’S PLAN 
FOR A CONSTITUTION, 1787 


Edited by 

ANDREW C. MCLAUGHLIN 


h 



§mm 


VOL. IX NO. 4 


JULY, 1904 






[Keprimed from Thk Amf.kican Historical Review, Vol. IX., No. 4, July, 1904.J 


DOCUMENTS 

I. Sketch of Pinckney's Plan for a Constitution, lySy. 

The paper which is given below in the first colnnin is found 
among the James Wilson manuscripts in the library of the Histori¬ 
cal Society of Pennsylvania. Through the courtesy of the librarian, 
Mr. John W. Jordan, it is here reproduced. The original is in the 
handwriting of James Wilson. It is undoubtedly an outline of the 
plan of a constitution presented to the Federal Convention by Charles 
Pinckney May 29, 1787. In order that the reader may have the 
evidence before him, there are here given in the second column ex¬ 
cerpts from Mr. Pinckney’s Observations on the Plan of Govern¬ 
ment Submitted to the Federal Convention, in Philadelphia, on the 
28th of May, iy8/. The pamphlet containing the Observations was 
printed, or at least distributed, soon after the Convention adjourned.^ 
It does not purport to be a speech delivered at the time of submitting 
the plan to the Convention, but to be made up of remarks “ Deliv¬ 
ered at different Times in the course of their Discussions ”. 

One or two questions are naturally raised by the inspection of 
this outline. The readers of the Review will remember that in Vol¬ 
ume VIII., pages 509-511, was printed a document which was sent 
in for publication by Professor J. F. Jameson.^ The document was 
confidently believed to be part of the Pinckney plan, and the finding 
of the outline below confirms the conclusion, if confirmation were 
needed. In these two documents we have Wilson’s treatment of the 
plan at two different times. The outline here printed was probably 
prepared early in the proceedings of the Convention; the other paper 
consists of excerpts chiefly referring to powers of Congress, and the 
excerpts were made, it is fair to presume, when Wilson, having been 
appointed on the Committee of Detail, found the resolutions that had 
been referred to the committee wanting in particularity concerning 
the powers to be exercised by the new government. In making the 
excerpts for his own purposes, Wilson did not exactly follow the 
order in which the subjects appeared in the plan. 

iSee Madison to Washington, New York, October 14, 1787, Writings of Madison, 
I. 342, 

2 Also printed in Annual Report of the American Historical Association, igo2, I. 

130-131- 



(735) 


736 


Documents 


In the paper entitled Studies in the History of the Federal Con¬ 
vention of 1787 ”, which was contributed to the Annual Report of 
the American Historical Association, ip02 (I. 87), Professor Jame¬ 
son ingeniously examines the opinions of Pinckney as expressed in 
the earlier part of the Convention’s proceedings, and, neglecting the 
claims which the South Carolina statesman put forth in later years, 
and likewise not paying particular regard to the Observations, he 
indicates the ideas which Pinckney evidently advocated. These 
were of course at variance with the pseudo plan as presented in the 
journal of the Convention, but were not in most particulars, it should 
be noticed, out of harmony with the declaration of the Observations. 
Pinckney’s notions, as disclosed by Jameson’s method, distinctly add 
to the evidence that the outline before us is a synopsis of the Pinck¬ 
ney plan. In order to make this appear more clearly I have added 
in foot-notes excerpts from Pinckney’s speeches as condensed by 
Madison and by others who reported on the debates. 

Remembering the gracious assurance with which Pinckney in 
1818 sent to John Quincy Adams propositions for a new constitu¬ 
tion, which were strikingly similar to the finished instrument, one 
is naturally somewhat hesitant to believe anything the distinguished 
statesman said concerning his services in the Convention. And yet 
it seems that we must now give greater credence to the Observa¬ 
tions than has been given in the past. Perhaps he did not say every¬ 
thing contained in that pamphlet; possibly he did not say much of 
it; Professor Jameson^ is of the opinion that only one paragraph, 
the next to the last,^ “ was ever heard in Independence Hall ”.® It 
seems very probable however that at least one other part of the Ob¬ 
servations was actually delivered. In the condensation of a speech 
made by Pinckney on June 8,^ Madison has preserved the order and 
in several cases almost reproduced the striking phraseology found 
in the fourteenth and fifteenth paragraphs of the Observations,^ 
urging that the national legislature should have the power to nega¬ 
tive state laws. But whatever may be the relation between the 
pamphlet and what Pinckney actually said in the Convention, it is 
impossible not to believe that the relation between the Observations 
and the lost plan is very close. There is strong, if not conclusive, evi¬ 
dence that all or large portions of the pamphlet were prepared, as 
comments on the plan, perhaps before Pinckney went to Philadel¬ 
phia. That they were afterward dressed up for publication, and that 

^Ibid., I. 121. 

2 Observations, 26-27. 

’Pinckney’s speech on July 2, Documentary History of the Constitution, III, 263. 

5 Observations, 12-17. 


Sketch of Pinckney s Plan for a Constitution, lySy 737 


certain ideas were inserted which were really the outgrowth of the 
Convention’s work and not original with Pinckney, is quite within 
the range of likelihood. For example, it still seems more than prob¬ 
able that the original plan did not contain the provisions spoken of 
by Pinckney on page 26 of his pamphlet: 

The next Article provides for the privilege of the Writ of Habeas 
Corpus — the Trial by Jury in all cases, Criminal as well as Civil — the 
Freedom of the Press, and the prevention of Religious Tests, as qualifica¬ 
tions to Offices of Trust or Emolument. . . . There is also an authority 
to the National Legislature, permanently to fix the seat of the general 
Government, to secure to Authors the exclusive right to their Perform¬ 
ances and Discoveries, and to establish a Federal University. 

The reasons for believing that these provisions were not in the 
plan are given by Jameson, and are conclusive.^ When Pinckney 
was preparing his pamphlet for the printer, he thrust in not only the 
comments on his plan of May 29, but those other provisions which 
he had proposed and advocated as late as August 20. 

And yet a comparison of the outline and the pamphlet shows that 
in most respects the speech as given in the Observations was a com¬ 
ment on the plan. We are led by the outline to believe that the 
speech was prepared in good faith and that in most respects it really 
described the plan which he presented. On the other hand, the out¬ 
line below does not give merely a synppsis of the Observations as 
printed; there are variations, not serious, but sufficient to show that 
Wilson in writing this document did not have the written speech or 
printed pamphlet before him. The most puzzling variation is in the 
numbering of the paragraphs. The third paragraph of the outline 
is called the fourth in the Observations. The ninth of the outline 
is called the fifth in the Observations. After mentioning the fifth, 
the Observations speaks of two articles consecutively, numbered in 
the outline ten and eleven, and then speaks of the “ seventh ”, which 
of course ought to have been eighth, had Pinckney’s genius for 
accuracy allowed him to count correctly. The reader will notice, 
ho\’^ever, that on the whole there is a marked similarity in the suc¬ 
cession of the articles: number nine of the plan is five in the Obser¬ 
vations; then follow in order the articles numbered in the outline 
ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, 
nineteen, twenty, twenty-one, twenty-two. An article on naturali¬ 
zation, if it was in the original plan, as one would judge from the 
Observations, is omitted, but there then follows twenty-three, called 
in the Observations ''sixteen”. To account for such discrepancy 
as exists is difficult, and an attempt to explain it would be only to 

Annual Report of the American Historical Association, igo 2 , I. 122, 123. 


738 


Documents 


hazard a guess. My guess would be that the plan which Pinckney 
had before him when he prepared the Observations was somewhat 
differently numbered than the one finally filed with the secretary of 
the Convention. 

Pinckney says in concluding his speech as it appears in the 
pamphlet: “ I ought again to apologize for presuming to intrude my 
sentiments upon a subject of such difficulty and importance. It is 
one that I have for a considerable time attended to He had in 
fact, as a member of Congress, taken this subject of improving the 
Confederation into serious consideration. In May, 1786, he moved 
in the Continental Congress the appointment of a grand committee 
“ to take into consideration the affairs of the nation ; he declared 
that it was necessary that Congress should have greater powers, that 
a convention should be called for the purpose, or that Congress should 
call on the states for enlarged authority. He said “ that the con¬ 
federation was deficient in powers of commerce, in raising troops, 
and in the means of executing those powers that were given No 
trace of the discussion of this subject can be discovered in the official 
papers. Some time early in July"^ a grand committee was appointed 
to consider the affairs of the Union. This committee reported Au¬ 
gust 7, 1786.® It is probable that Pinckney was its chairman. As 
to this it is difficult to determine, because no mention is made of the 
committee in the manuscript journal of the old Congress; the manu¬ 
script committee-book shows the names arranged in the order of 
states, running from north to south. The committee appointed a 
subcommittee of three, of which Pinckney was chairman.® The 
subcommittee drew up a report, in the preparation of which we may 
be permitted to think Pinckney had a considerable part. The grand 
committee accepted and presumably reported the findings of the sub¬ 
committee as its own.”^ The introductory words, as they appear in 
the original manuscript, are written apparently in Pinckney’s hand, 
a fact worth mentioning only as an indication of his activity. A 

. 1 Observations^ 27; Frank Moore, American Eloquence (New York, 1862), I. 370. 

2See Bancroft, History of the Formation of the Constitution (New York, 1882), I. 
500, where is quoted Thomas Rodney’s report of debates in Congress. 

3 Ibid. 

^ I judge that the date was early in July from the place in which the entry appears 
in the manuscript committee-book, in Papers of the Continental Congress, CXC. 107. 

5 The original report of this committee is in Papers of the Continental Congress, 
XXIV., Part I., 179-194, Reports of Committees. It is printed in Bancroft, History of 
the Constitution, II., appendix, 373-377. The date of making the report is obtained 
from the indorsement on the back of the last sheet, as is also the fact that a subcommittee 
of three, of which Pinckney was chairman, was appointed. This indorsement is printed 
by Bancroft. 

6 Ibid. 

7 Ibid. 


Sketch of Pi 7 ichiey s PLa 7 i for a Constitution, tySy 739 

comparison of the report with the Obscri’afions and the outline 
printed below will show that Pinckney was much influenced by 
his work in the Continental Congress. Did he in large measure 
embody in his new plan the amendments he had been working on 
and discussing the previous summer? The quotations given in the 
foot-notes will aid in answering that question. It will be noticed 
that he plainly used at least a portion of the report, and it is fair , 
perhaps to believe that his work in the Federal Convention was but i 
a continuation of his work in Congress. In the Convention, how- ' 
ever, he had opportunity to propose more radical alterations, and 
probably the dreary autumn and winter that preceded the meeting 
at Philadelphia had taught him, as it had taught others, the need 
of changing the first principles of the system. After arranging for 
a better form of government, did he not put in much of the seven 
articles which constituted the report of August 7, 1786? 

The portion of the plan which Professor Jameson discovered 
contains not less than twenty propositions that are found in the re¬ 
port of the Committee of Detail and that are not found in the 
twenty-three resolutions submitted to the committee, nor in the Vir- i 
ginia or Paterson resolutions.^ Six of these were presumably taken 
by Pinckney from the Articles of Confederation. It might possibly 
also be reasonable to add the power to levy duties on imports and 
the power to regulate commerce, which were also in the Paterson 
plan, inasmuch as Pinckney’s plan was submitted first; but such 
ideas were practically common property in 1787. In the document, 
which is printed in facsimile in Meigs’s Grozvth of the Constitution 
in the Federal Convention of (Philadelphia, 1900), and which 

Mr. Meigs has shown to be a draft made by Randolph for the use 
of the Committee of Detail, thirteen of these twenty propositions 
appear.^ Of these, four are written in the margin or interpolated 
in the text in John Rutledge’s remarkable handwriting, which is 
chary about surrendering its secrets. By the help of the outline 
given below, we can detect other interpolations by Rutledge seem¬ 
ingly taken from Pinckney: (a) the words “by Ballot” in the 
sentence “ who shall be elected by the legislature by Ballot ; (b) 

“ nor lay imposts or duties on imports ; (c) “ the consent of the 

1 American Historical Review, VIII. 509; Annual Report of the American 
Historical Association, igo2, I. 130-131. To the provisions printed in italics in the 
plan on pages 130-131 should be added “fixing the Standard of Weights and Measures ”. 
See page 132, note a, 

2 The nine plates inserted betvv^een pages 316 and 317. 

3 4 nmial Report of the American Historical Association, jgo 2 , I. 132. 

^ Meigs, plate vi. 

^ Ibid., plate v ; Report of Committee, article xiii. 


740 


Documents 


Legislatures of such States shall be also necessary to its admission ”, 
which is presumably the result of Rutledge’s marginal note, “ States 
lawfully arising and if within the Limits of any of the pres[en]t 
States by Consent of the Legisl'f of those States ”4 To these pos¬ 
sibly may be added (d) “ cases of Admiralty . . . jurisdiction ”, 
certainly interpolated by Rutledge,^ and perhaps taken from Pinck¬ 
ney.® It might be fair to add to these the provision for calling a 
convention for amending the Constitution on the application of the 
legislatures of two-thirds of the states. In other words, besides the 
four previously mentioned by Jameson, three and perhaps four of 
Pinckney’s propositions are thus seen working their way into the 
report of the committee. All but the first, after some verbal modi¬ 
fication, found a place in the Constitution. 

We may next notice that in the report of the Committee of De¬ 
tail are two other provisions that may be ascribed to the influence 
of the Pinckney plan: (a) the provision for the time of election of 
members of each house^; (b) the provision for the meeting of Con¬ 
gress.® But there are a number of other provisions, which Pinck¬ 
ney borrowed from the Articles of Confederation and which, pre¬ 
sumably through the medium of his plan, found their way into the 
report of the committee: the clause granting to the citizens of each 
state the privileges and immunities of citizens in the various states; 
the provision for the surrender of criminals, which was also in the 
Paterson plan; the provision that each state shall give full faith to 
acts, records, and judicial proceedings of other states; the pro¬ 
vision that no state shall make treaties; that no state shall keep a 
naval or land force; that Congress shall have the right to regulate 
the value of money and its alloy. All of these with some modifica¬ 
tion entered into the Constitution. We should notice also that the 
Committee of Detail reported in favor of having the Senate establish 
a court of final resort for trial of cases between states, almost a 
direct copy of the provision in the Articles of Confederation and 
appearing as article fourteen of the Pinckney plan, but of course not 
going into the final draft of the Constitution. There is some indi¬ 
cation in the outline before us that at least two other provisions 
which finally appeared in the Constitution were in a measure due to 
Pinckney’s suggestion. 

By help of the condensation of the plan which Professor Jame¬ 
son discovered and from the light thrown on the problem by tlie 

1 Report of Committee, article xvii; Meigs, plate vii. 

2 Report of Committee, article xi, section 3 ; Meigs, plate vii. 

3 See article 15 below. 

< Report of Committee, article vi, section i, 

5 Ibid., article iii. 


Sketch of Pincknef s Plan for a Constitution, lySy 741 

document printed below, we can say that Pinckney suggested some 
thirty-one or thirty-two provisions which were finally embodied in 
the Constitution; of these, about twelve were originally in the Ar¬ 
ticles of Confederation, and of course the fact that they were restated 
by Pinckney in his plan may not have had material influence in 
securing their adoption. 

It must not be assumed that we know all that Pinckney thus con-, 
tributed to the fabric of the Constitution. We now know very defi¬ 
nitely the nature of his recommendations, we know that some of 
them found formulation in the Continental Congress, and we know 
that many of them were finally embedded in the Constitution; but 
there were doubtless some other propositions that likewise found 
permanence in the work of the Convention. If mere assertion based 
on analogy and general probability were worth while, other portions 
of the Constitution might be pointed to as coming from the ingenious 
and confident young statesman from South Carolina. 

Excerpts from the Observa¬ 
tions. 

. . . their true interest consist in 
concentering as much as possible, 
the force and resources of the union 
in one superintending Government 
(p. 14).‘ 


The 4th article, respecting the 
extending the rights of the Citizens 
of each State, throughout the United 
States; the delivery of fugitives 
from justice, upon demand, and the 
giving full faith and credit to the 
records and proceedings of each, is 
formed exactly upon the principles 
of the 4th article of the present 
Confederation, except with this 
difference, that the demand of the 
Executive of a State, for any fugi¬ 
tive, criminal offender, shall be 
complied with (p. ii). 

> Page references are to the pamphlet. The passages can readily be found in the 
reprint in Moore’s American Eloquence, I. 362-370. 

2 Or Foes. 


Outline of the Plan. 

T. A Confederation between the 
free and independent States of N. 
H. etc. is hereby solemnly made 
uniting them together under one 
general superintending Government 
for their common Benefit and for 
their Defense and Security against 
all Designs and Leagues that may 
be injurious to their Interests and 
against all Fore [e] [?] ^ and Attacks 
offered to or made upon them or 
any of them 

2 The Stile 

3 Mutual Intercourse — Com¬ 
munity of Privileges — Surrender 
of Criminals — Faith to Proceed¬ 
ings etc. 



742 


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4 Two Branches of the Legisla¬ 
ture — Senate — House of Dele¬ 
gates— together the U. S. in Con¬ 
gress assembled 

H. D, to consist of one Member 
for every thousand Inhabitants -| of 
Blacks included ^ 

Senate to be elected from four 
Districts^ — to serve by Rotation 
of four Years — to be elected by 
the H. D. either from among them¬ 
selves or the People at large ® 


5 The Senate and H. D. shall 
by joint Ballot annually* chuse the 
Preside U. S. from among them¬ 
selves or the People at large. — In 
the Presd! the executive authority 
of the U. S, shall be vested. — His 
Powers and Duties — He shall have 
a Right to advise with the Heads 
of the different Departments as his 
Council 


The division of the legislative 
will be found essential, because, in 
a government where so many impor¬ 
tant powers are intended to be 
placed, much deliberation is requis- 
ite (p. 8). 

The Senate, I propose to have 
elected by the House of Delegates, 
upon proportionable principles, in 
the manner I have stated, which 
though rotative, will give that body 
a sufficient degree of stability and 
independence. The districts, into 
which the Union are to be divided, 
will be so apportioned, as to give 
to each its due weight, and the Sen¬ 
ate, calculated in this, as it ought 
to be in every Government, to 
represent the wealth of the Nation 
. . . each class being elected for 
four years (p. 9). 

The executive should be ap¬ 
pointed septennially, but his eligi¬ 
bility ought not to be limited (p. 
9 )- 


‘On June ii {Doc. Hist.., III. 107) Pinckney moved that the ratio of representation 
be “in proportion to the whole number of white and other free Citizens and inhabitants 
of every age sex and condition including those bound to servitude for a term of years and 
three fifths of all other persons not comprehended in the foregoing description, except 
Indians not paying taxes, in each State.” Compare his attitude on July 6 and 12 {ibid., 
283, 324). He advocated the election of the first branch “ by the State Legislatures and 
not by the people” {ibid., 69). 

2 On July 2 {ibid., 264) Pinckney “read his motion to form the States into 
classes, with an apportionment of Senators among them”. Madison adds as a note 
“see art. 4 of his plan”. Pierce says (Pierce’s notes in American Historical Re¬ 
view, III. 319), “ Mf Ch® Pinckney said he meant to propose to divide the Continent into 
four Divisions, out of which a certain number of persons sld be nominated, and out of 
that nomination to appoint a Senate.” 

3 Apparently in accordance with this proposition, on June I, when the proposal that 
the Senate should be chosen by the first branch out of persons nominated by the state 
legislatures was being discussed, Pinckney moved to strike out the clause providing for 
“nomination by the State Legislature” {Doc. Hist., III. 31). 

‘In the Convention Pinckney favored having the executive consist of a single person 
{ibid., 35, 51) and strongly advocated his being elected by the legislative body {ibid., 
355), but proposed a seven-year term {ibid., 39), instead of the one-year term provided 
for here. It is very probable, however, that the word “annually” indicates a mistake 
by Wilson in jotting down the plan ; in the Obsei-vations Pinckney used the word “ sep¬ 
tennially ”. 


Sketch of Pinckney s Plan foi'' a Constitution, ij 8 j 743 


6 Council of Revision, consist¬ 
ing of the Preside S. for for. Affairs, 
S. of War, Heads of the Depart¬ 
ments of Treasury and Admiralty 
or any two of them tog"^ w* the 
Presid* ^ 


7 The Members of S. and H. 
D. shall each have one Vote, and 
shall be paid out of the common 
Treasury. 


8 The Time of the Election of 
the Members of the H. D. and of 
the Meeting of U. S. in C. as¬ 
sembled. 


9 No State to make Treaties — 
lay interfering Duties — keep a 
naval or land Force Militia excepted 
to be disciplined etc according 
to the Regulations of the U. S. 


In the Parliament of Great-Brit- 
ain, as well as in most, and the best 
instituted legislatures of the States, 
we find, not only two Branches, 
but in some, a Council of Revision, 
consisting of their executive, and 
principal officers of government. 
This, I consider as an improvement 
in legislation, and have therefore 
incorporated it as a part of the 
system. It adds to that due delib¬ 
eration, without which, no act 
should be adopted ; and, if in the 
affairs of a State government, these 
restraints have proved beneficial, 
how much more necessary may we 
suppose them, in the management 
of concerns, so extensive and im¬ 
portant? (pp. 8-9.) 

The assigning to each State its 
due importance in the federal Coun¬ 
cils, at once removes three of the 
most glaring defects and incon- 
veniencies of the present Confed¬ 
eration. The first is, the inequality 
of Representation : the second is, 
the alteration of the mode of doing 
business in Congress ; that is, vot¬ 
ing individually, and not by States : 
the third is, that it would be the 
means of inducing the States to 
keep up their delegations by punc¬ 
tual and respectable appointments 
(pp. 7-8). 

There is also in the Articles, a 
provision respecting the attendance 
of the Members of both Houses ; it 
is proposed that they shall be the 
judges of their own Rules and Pro¬ 
ceedings, nominate their own Offi¬ 
cers, and be obliged, after accepting 
their appointments, to attend the 
stated Meetings of the Legislature 

(p- 25)- 

The 5th article, declaring, that 
individual States, shall not exercise 
certain powers, is also, founded on 
the same principles as the 6th of 
the Confederation (p. ii). 


1 “ M! Pinkney had been at first in favor of joining the heads of the principal 
departmfs the Secretary at War, of foreign affairs and — in the council of revision. He 
had however relinquished the idea from a consideration that these could be called on by 
the Executive Magistrate whenever he pleased to consult them ” { Doc. Hist., III. 78-79). 


744 


Documents 


The next, is an important altera¬ 
tion of the Federal System, and is 
intended to give the United States 
in Congress, not only a revision of 
the Legislative acts of each State, 
but a negative upon all such as shall 
appear to them improper (p. 12). 

I must confess, I view the power 
of revision and of a negative as the 
corner stone of any reform we can 
attempt (p. 13). 

The next article, proposes to in¬ 
vest a number of exclusive rights, 
delegated by the present Confeder¬ 
ation (p. 17). 

The 7th article invests the United 
States, with the com pleat power of 
regulating the trade of the Union, 
and levying such imposts and duties 
upon the same, for the use of the 
United States, as shall, in the opin¬ 
ion of Congress, be necessary and 
expedient (p. 17). 

The 8th article only varies so far 
from the present, as in the article 
of the Post-Office, to give the Fed¬ 
eral Government a power, not only 
to exact as much postage, as will 
bear the expence of the Office, but 
also, for the purpose of raising a 
revenue (p. 18). 

'Compare “No position appears to me more true than this; that the General 
Gov^ can not effectually exist.without renewing to the States the possession of their local 
rights”, from Pinckney’s speech of June 25 [ibui., 207). 

2 “ Ml Pinkney moved ‘that the National Legislature shj have authority to negative 
all Laws which they shj judge to be improper’ ” [ibid., 88). 

3 Compare this section of the plan with the italicized portions of the following pro¬ 
posed amendment to the Articles of Confederation, reported by the committee of the 
Continental Congress referred to above : 

“ Art. 14. The United States in congress assembled shall have the sole and exclusive 
power of regulating the trade of the states as well with foreign nations as with each other, 
and of laying such prohibitions, and such imposts and duties upon imports and exports, 
as may be necessary for the purpose ; provided the citizens of the states shall in no 
instance be subjected to pay higher duties and imposts than those imposed on the subjects 
of foreign powers ; provided, also, that all such duties as may be imposed shall be collected 
under such regulations as the United States in congress assembled shall establish consis¬ 
tent with the constitutions of the states respectively, and to accrue to the use of the state 
in which the same shall be payable ; provided, also, that the legislative power of the 
several states shall not be restrained from laying embargoes in times of scarcity ; and 
provided, lastly, that every act of congress for the above purpose shall have the assent of 
nine states in congress assembled, and in that proportion when there shall be more than 
thirteen in the union.” Bancroft, History of the Constitution of the United States, 11 ., 
appendix, 374. 


10. Each State retains its Rights 
not expressly delegated ^ — But no 
Bill of the Legislature of any State 
shall become a law till it shall have 
been laid before S. and H. D. in 
C. assembled and received their 
Approbation.^ 


II. The exclusive Power of S. 
and H. D. in C. Assembled 


12. The S. and H. D. in C. ass. 
shall have exclusive Power of regu¬ 
lating trade and levying Imposts — 
Each State may lay Embargoes in 
Times of Scarcity ^ 


13 - of establishing Post- 

Offices 



Sketch of Pinckney s Plan for a Constitution, lySy 745 


14. S. and H. D. in C. ass. shall 
be the last Resort on Appeal in Dis¬ 
putes between two or more States; 
which Authority shall be exercised 
in the following Manner etc 


15. S. and H. D. in C. ass. shall 
institute offices and appoint officers 
for the Departments of for. Affairs, 
War, Treasury and Admiralty. 

They shall have the exclusive 
Power of declaring what shall be 
Treason and Misp. of Treason ag! 
U. S.— and of instituting a federal 
judicial Court, to which an Appeal 
shall be allowed from the judicial 
Courts of the several States in all 
Causes wherein Questions shall 
arise on the Construction of Trea¬ 
ties made by U. S.— or on the 
Laws of Nations — or on the Reg¬ 
ulations of U. S. concerning Trade 
and Revenue — or wherein U. S. 
shall be a Party — The Court shall 
consist of Judges to be appointed 
during good Behaviour^ — S and 
H. D. in C. ass. shall have the 
exclusive Right of instituting in 
each State a Court of Admiralty, 
and appointing the Judges etc of 
the same for all maritime Causes 
which may arise therein respect¬ 
ively 


The 9th article respecting the 
appointment of Federal Courts, for 
deciding territorial controversies 
between different States, is the same 
with that in the Confederation ^; 
but this may with propriety be left 
to the Supreme Judicial (p. 18). 

The loth article gives Congress 
a right to institute all such offices 
as are necessary for managing the 
concerns of the Union ; of erect¬ 
ing a Federal Judicial Court, for 
the purposes therein specified ; and 
of appointing Courts of Admiralty 
for the trial of maritime causes in 
the States respectively. ... At 
present there is no Tribunal in 
the Union capable of taking cogni¬ 
zance of their officers who shall 
misbehave ... for this, as well as 
the trial of questions arising on the 
law of nations, the construction of 
treaties, or any of the regulations 
of Congress in pursuance of their 
powers, or wherein they may be a 
party, there ought certainly to be a 
Judicial, acting under the authority 
of the Confederacy (pp. 18-19). 


1 The ninth article of the Articles of Confederation made the United States in Con¬ 
gress assembled “ the last resort on appeal in all disputes and differences . . . between two 
or more States . . . which authority shall always be exercised in the manner following.” 

^ Pinckney was in favor of having the judges appointed by the legislative body 
{Doc. Hist., III. 64, 117, 400). 

Compare the foregoing provisions in the second paragraph of this section of the plan 
with the italicized portions of the following proposed additional Article of Confederation 
reported by the committee of the Continental Congress referred to above : 

“ Art. 19. The United States in congress assembled shall have the sole and exclu¬ 
sive power of declaring what offences against the United States should be deemed treason 
and what offences against the same misprision of treason, and what offences shall be 
deemed piracy or felonies on the high seas, and to annex suitable punishments to all the 
offences aforesaid respectively, and power to institute a federal judicial court for trying 
and punishing all officers apj ointed by congress for all crimes, offences, and misbehavior 
in their offices, and to which court an appeal shall be allotved from the judicial courts of 
the several states in all causes wherein questions shall arise on the meaning and constrtu- 
tion of treaties entered into by the United States with any foreign power, or on the law 
of nations, or wherein any question shall arise respecting any regulations that may 
hereafter be made by congress relative to trade and commerce, or the collection of federal 
revenues pursuant to powers that shall be vested in that body, or wherein questions of 

AM. HIST. REV., VOL, IX,— 48. 


746 


Documents 


16. S and H. D. in C. Ass shall 
have the exclusive Right of coining 
Money — regulating its Alloy and 
Value — fixing the Standard of 
Weights and Measures throughout 
U. S. 

17. Points in which the Assent 
of more than a bare Majority shall 
be necessaryP 


18 Impeachments shall be by 
the H. D. before the Senate and 
the Judges of the federeal judicial 
Court. 

19. S. and H. D. in C. ass. j 
shall regulate the Militia thro’ the 

U. S. 


20. Means of enforcing and com¬ 
pelling the Payment of the Quota 
of each State. 


21. Manner and Conditions of 
admitting new States. 


The exclusive right of coining 
Money — regulating its alloy, and 
determining in what species of 
money the common Treasury shall 
be supplied, is essential to assuring 
the Federal Funds (p. 19). 

In all those important questions 
where the present Confederation 
has made the assent of Nine States 
necessary, I have made the assent 
of Two-Thirds of both Houses, 
when assembled in Congress, and 
added to the number, the Regula¬ 
tion of Trade, and Acts for levying 
an Impost and raising a Revenue 
(p. 20). 


The exclusive right of establish¬ 
ing regulations for the Government 
of the Militia of the United States, 
ought certainly to be vesed [vested], 
in the Federal Councils . . .jan 
uniformity in Discipline and Regu¬ 
lations should pervade the whole 
. . . they should have the exclu¬ 
sive right of establishing regulations 
for their Government and Disci¬ 
pline (pp. 20-21). 

In every Confederacy of States, 
formed for their general benefit 
and security, there ought to be a 
power to oblige the parties to fur¬ 
nish their respective quotas (p. 21). 

The article impowering the 
United States to admit new States 
into the Confederacy is become in- 
dispensible, from the separation of 


importance may arise, and the United States shall be a party, provided that the trial of the 
fact by jury shall ever be held sacred, and also the benefits of the writ of habeas cor¬ 
pus ; provided, also, that no member of congress or officer holding any other office un¬ 
der the United States shall be a judge of said court, and the said court shall consist of 
seven judges, to be appointed from the different parts of the union, to wit, one from New 
Hampshire, Rhode Island, and Connecticut, one from Massachusetts, one from New 
York and New Jersey, one from Pennsylvania, one from Delaware and Maryland, one 
from Virginia, and one from North Carolina, South Carolina, and Georgia, and four of 
whom shall be a quorum to do business.” Bancroft, History of the Constitution of the 
United States, If., appendix, 376-377. 

1 Compare this section and the accompanying excerpt from the Observations with 
the last provision of the proposed additional Article of Confederation, given above on page 

744. 


Sketch of Pinckney s Plan for a Constitution, ij8j 747 


22. Power of dividing annexing 
and consolidating States, on the 
Consent and Petition of such 
States.^ 


23. The assent of the Legisla¬ 
ture of States shall be sufficient to 
invest future additional Powers in 
U. S. in C. ass. and shall bind the 
whole Confederacy.^ 


24. The Articles of Confedera¬ 
tion shall be inviolably observed, 
and the Union shall be perpetual®: 
unless altered as before directed 

25. The said States of N. H. etc 
guarrantee mutually each other and 
their Rights against all other Powers 
and against all Rebellion etc. 


certain districts from the original 
States, and the increasing popula¬ 
tion and consequence of the West¬ 
ern Territory (p. 22). 

I have also added an article 
authorizing the United States, upon 
petition from the majority of the 
citizens of any State, or Conven¬ 
tion authorized for that purpose, 
and of the Legislature of the State 
to which they wish to be annexed, 
or of the States among which they 
are willing to be divided, to consent 
to such junction or division, on the 
terms mentioned in the article (p. 

22) . 

The 16th article proposes to de¬ 
clare, that if it should hereafter ap¬ 
pear necessary ’to the United 
States to recommend the Grant of 
any additional Powers, that the 
assent of a given number of the 
States shall be sufficient to invest 
them and bind the Union as fully as 
if they had been confirmed by the 
Legislatures of all the States (p. 

23) - 


1 If the Obsei-vations are to be relied on, as of course they cannot in all particulars, 
an article giving the national government power to determine on what terms naturaliza¬ 
tion might be granted should be here inserted. 

2 “ M! Pinkney hoped that in case the experiment should not unanimously take place 
nine States might be authorized to unite under the same Governm.^” {^Doc. Hist., III. 
67.) 

3 In the original appears a cross, above the line, before “and” and also after “per¬ 
petual”, thus indicating presumably that the writer of the outline had noticed that the 
thought of the paragraph was not consistent, and that the phrase between the crosses 
should come later, bringing the last phrase, “ unless altered as before directed”, closer 
to “inviolably”. 







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